Since then the exemption has been extended to 31 December 2015 – but, warns Michael Bauer, GM of the property management company, IHFM, that will almost certainly be the final deadline allowed for compliance – and non-complying companies or organisations will be prosecuted thereafter.

The Act, says Bauer, came as a shock to people in the property sector because it includes both private bodies (possibly working through companies, trusts and close corporations) and public bodies.  Also included are homeowners’ associations and bodies corporate.

All these bodies, said Bauer, are required to compile a manual to enable interested parties to access data relevant to the entity of which they are the custodians.  This information has to be available to the general public on written application – with some exceptions.

The manual provides such simple facts as their postal and their email addresses but, more significantly, the Act also makes it compulsory to include in such manuals all company records relating to a large body of legislation (nine acts in all).  Included in this list are all the decisions and actions taken in compliance with the Labour Relations Act, the Employment Equity Act, the Basic Conditions of Employment Act, the Compensation of Occupational Injuries and Disease Act, the Companies Act, the Unemployment Insurance Act, the Income Tax Act and the Skills Development Act.

In addition, the manual has, too, to contain all the data put together for both the formation and running of the company or organisation (e.g. minutes of board meetings and a share register) and all financial records including an asset register, accounting, banking and tax records – with special emphasis on income tax records.

Then, too, all data relating to the personnel (e.g. salary, pension and training records) have to be listed.

Section 51 of the Act explains how a member of the public can go about requesting access to this information.  The request has to be in writing addressed to the head of the body and accompanied by a fee, and it has to “provide an explanation why the requested record is wanted for the exercise or protection of the requestor’s rights”.

Bauer said that access to information can be denied if it is deemed to an invasion of a member’s privacy or a threat to his privacy.

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New owners and body corporate members of sectional title schemes are often not aware that throughout the time development work is in progress – and, indeed, up to the first transfer – the developer is fully responsible for all the running costs of the scheme.  Owners have often, therefore, found themselves lumbered with large unpaid water and electricity and other accounts which the developer has failed to honour – and they may face a long battle to recover these amounts from the developer.

“This situation,” says Michael Bauer, general manager of IHFM, a company specialising in sectional title management, “has arisen more frequently than I like to acknowledge.”

Irresponsible developers, adds Bauer, are also inclined to “forget” about the inaugural AGM or hold it late.

The Sectional Title Act, says Bauer, lays it down that the first annual general meeting should be held within 60 days of the first unit being transferred.  The Act also states that notice of the first meeting must be given at least seven days ahead of the meeting and this notification must be accompanied by the agenda, the form of which is also set out in the Prescribed Management Rules.  It has to contain:

• the insurance of the scheme (this must have been finalised);
• the budget for the year ahead, with itemised estimates of all income and expenses.  This includes a schedule of levies for the scheme.
• the establishment of the body corporate;
• details of all contracts affecting the scheme concluded by the developer;
• the appointment of an auditor;
• the election of trustees;
• any restrictions to be agreed to on the decision making or spending of the trustees;
• the domicilium citandi et executandi of the body corporate.

Should the developer fail to hold the inaugural meeting he has, says Bauer, committed a criminal offence.

Once the inaugural meeting is concluded, the first trustee meeting has to be held within 14 days.  Bauer strongly recommends that trustees then review all service providers, contracts, expenses, expense allocations and recoveries claimed by the developer.  The should also confirm that the sectional plans are correct, check that all common property is transferred into the body corporate’s name, inspect the common property for quality and building issues, obtain copies of the various building guarantees provided by the developer, and prepare a snag list and ensure snags are repaired by the developer within the specified time frame of the building guarantees.

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Bauer pointed out that the Sectional Title Act’s Prescribed Management Rule 71 was recently amended so that now only the Chief Registrar of Deeds can appoint an arbitrator.  Although this can delay the process slightly (previously any registrar could act in this way) arbitration is still preferable to litigation, he says.

The PM rule allows for arbitration between an owner (or owners) and the body corporate – or vice versa – and between one or more owners and another owner or owners.

“In view of the effectiveness of arbitration,” he said, “it is important that all sectional title trustees and owners know how to go about it.”

The steps in the process are:

• “Serving”, i.e. delivering a first notice of dispute to the other party.  This must state in full the nature of the complaint or dispute.

• Notifying the scheme’s trustees and managing agent of this.

• Waiting 14 days for a response, failing which either of the parties can then demand that arbitration goes ahead.

• Serving a second notice of dispute and proposing two or three suitably qualified and independent persons as arbitrators.

• Allowing three days for a reply, failing which, or in response to which, the complainant can ask the Chief Registrar for an arbitrator to be appointed – who will then guide both parties through the arbitration process.

Bauer said that “thankfully” just the threat of arbitration often brings about a settlement because it is now widely known that the loser may end up having to pay not only what is demanded (if cash is involved) but also the legal costs for himself and his opponent.

He added that PMR 71 will fall away when the Community Schemes Ombud Services Bill comes into the effect.

Michael Bauer is a regular contributor to www.sectionaltitlesa.co.za.  For further information on IHFM’s services go to www.ihfm.co.za or telephone Michael Bauer on 083 255 4442.  He can also be emailed on michael@ihfm.co.za.

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Typical members of the public when buying into a sectional title scheme are inclined to be rather too trusting on these matters. That is, however, not the case with the banks.  Before they award a bond to a buyer in a sectional title scheme they will ask three main sets of questions – and it is exactly these same questions which buyers themselves should be investigating before taking a decision to purchase a property.

If banks are not satisfied that certain requirements are being met they will be reluctant to grant bonds on properties in certain schemes, and this will then directly influence an owner’s chances of selling their property in the future.

The first set of questions to be asked would be – Are the budgets being drawn up appropriately?  Are the levies realistic, i.e. are they sufficient to cover all the body corporate’s expenses, including regular maintenance and is there a reserve fund to which the levies contribute? In short, does the scheme have a positive cash flow, are all creditors being remunerated on a regular basis, are security measures in place and is maintenance attended to on a regular basis?

The banks will look at the levies of the last few years and if there is no evidence of regular annual increases they will be concerned because it is now an accepted fact that good schemes are forced to raise their levies year-on-year and to make provision by means of a reserve fund for unexpected levy arrears and for those occasional major special projects such as the replacement of lifts or the upgrade of security systems or roofing, which can all prove to be very costly.

The second set of questions will pertain to whether there is good governance by trustees and the scheme is complying with the conditions as set out in the Sectional Title Act. Are annual general meetings held regularly and on schedule and are minutes being kept? Are the financials correctly audited and signed off by the trustees? Is the insurance policy up to date and is the cover comprehensive?

It may surprise members of the public, and more especially those of efficiently running sectional title schemes, to know that some schemes simply neglect to hold annual general meetings, sometimes for a few years in succession.

The third set of questions, and perhaps the most important, will relate to levy payments:  Are these being collected efficiently? And what percentage of members, if any, are in arrears on their payments and, if so, how seriously?

Prospective buyers should always ask whether there are any special levies scheduled to be raised in the near future because, once they take transfer of a property, they will be liable for their portion calculated according to participation quota.

If non-payment of levies has become a bad habit in any scheme, the question then has to be asked: Is sufficiently strong corrective action being taken to put matters right? No scheme can run efficiently without the regular contribution of levies by every owner.

It is the trustees’ duty on being asked to answer any questions and to supply any member of the scheme with a full set of the accounts and minutes of the latest annual general meeting and any other documentation requested. Buyers entering into a scheme for the first time should, therefore, approach the trustees or managing agent for the information they require and satisfy themselves that all these conditions are being met. – Catherine Cockcroft

Catherine Cockcroft is the sales manager of Propell, the levy funding company.

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Section 14 of the PAIA for public bodies and section 51 of the PAIA for private bodies came into effect in February 2002. One of the main objectives of the PAIA is to promote transparency, accountability and effective governance of all private and public bodies.

According to section 51 of PAIA, non-government bodies need to create both a manual describing the type of records they hold and procedures for others to access that information.

All bodies corporate, share block schemes, and home owners associations are private bodies and are not exempt from PAIA.

Contents of the Manual:

• Scheme contact details.
• Contact details of the head of the organisation.
• Reference to the South African Human Rights Commission (SAHRC) – the guide that the SAHRC has produced to the Act and how to access it.
• Procedure for requesting information for the organisation.
• Description of what information is automatically available to the public.

You have an obligation to make the manual available to the Public. This includes the obligation that the Manual must be submitted to:

• SAHRC.
• Any controlling body (e.g. for layered schemes).
• Any scheme website.
• Its main office during office hours (or the managing agent’s premises if no office exists).

Anyone has the right to request the information from the scheme, but PAIA does set limits on the types of information that can be accessed. For example, information does not need to be given if it infringes a person’s right to privacy or safety.

It would be advisable that the managing agent or trustees develop a procedure to handle the requests. People can only request the information when the record is required for the exercise of rights or protection of rights. This will require some degree of discretion from the person handling the requests and may end up in disputes.

To wrap up, what you need to do is prepare your sectional title scheme’s PAIA Manual, publish it before 31 December 2015 (it was extended from 31 December 2011), send a copy to the SAHRC, and have it available to be printed and handed over in physical form.

You must also prepare procedures for dealing with requests and make sure the people dealing with those requests know how to handle them.

Should you require any further information in this regard, kindly contact Michael Bauer on 083 255 4442 or email Michael@ihfm.co.za.

For more information, please visit www.ihfm.co.za.

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Another section of the Act (39(1)) spells out these duties and, says Catherine Cockcroft, sales manager of the levy funding and collection company, Propell, it is important to notice that maintenance of the property is high on the trustees’ list.

“Although this is not always accepted,” said Cockcroft, “ongoing maintenance is a body corporate’s statutory duty.  Failure to carry out this duty could provide grounds for the dismissal of the trustees or even the appointment by the court of an administrator to take complete control of the scheme.

“Maintenance is important, said Cockcroft, because owners suffer financially and psychologically if their scheme is neglected:  its units’ market values fall, and residents pick up a negative attitude to the place that should be providing them with refuge and recuperation.”

Equally serious, said Cockcroft, is the fact that neglecting a building will always greatly increase the list of the maintenance and repair when these are finally undertaken.

“When maintenance is delayed, the ultimate cost of putting matters right will always escalate.

“The argument so often put forward for holding back on essential maintenance tasks is that the funds are simply not there – but this should never be accepted because trustees have the right to initiate steps for raising a special levy or dealing with a funding organisation like Propell which is prepared to fund this type of work, sometimes, however, insisting that they also take over the levy collection.”

Propell, said Cockcroft, usually offers one to five year repayment periods charged at market related interest rates.

When repair/upgrade tasks are tackled, said Cockcroft, trustees should obtain at least two tender quotes, preferably more, but it must always be kept in mind that the cheapest solution is not always the best one.  If necessary, the advice of an independent expert such as a maintenance consultant should be sought, before a final decision is made.

Propell, said Cockcroft, will always recommend that a professional consultant be engaged to write the specifications for larger more complex projects.

Often the funding problems on sectional title schemes stem from trustees failing to understand the need for an ongoing maintenance plan, supported by an adequate budget.  Such plans, she said, in most cases involve allowing for a 10 to 15% surplus on the annual expenses voted for at the AGM.  If a surplus fund is built up over time, the need for drastic special levies will be much reduced.

Apart from ensuring that reputable reliable contractors are appointed, trustees, said Cockcroft, should also see to it that they have a health and safety plan which lays down the precautions the contractors must take while on site.  In addition, a copy of the labour regulations and the Occupational Health and Safety Act should be included as an addendum to the contract document and the contractor should agree in writing to abide by these.

Cockcroft warned, too, that trustees who give the go ahead on contractual work without first checking on a contractor’s insurance cover could quite possibly be held liable for negligence in the event of an accident

“So, in addition to being responsible for the maintenance of their schemes, trustees must then inform themselves about their responsibilities regarding contractors and the quality of the work done for them.”

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However, according to specialist sectional title attorney and director at BBM Attorneys, Marina Constas, buyers need to investigate all the options.

“For the most part, retired people have to choose between buying a unit in a sectional title complex or buying a life right,’ she says.

“I’m often asked how sectional title ties up with retirement villages. The answer is that a developer may decide to sectionalise the village under development and register it as a sectional title scheme. In that case, the Sectional Titles Act applies and the fact that it is strictly a retirement village reflects in the rules of the complex.”

Buying a life right is different. On signing an agreement, a buyer commits to paying a contribution ( the purchase price) and has the right to live in the unit for the rest of his life or until he leaves the village.

Constas emphasises that the life right option should never be regarded as a property investment as there is no asset that grows in value.

However, this structure does suit many people as it guarantees them a safe place in which to live until the end of their days. These villages also cater specifically for the needs of elderly people and ensure that the best medical care is easily available.

Constas points out that life right developments don’t fall under the Sectional Titles Act but under the Housing Development Schemes for Retired Persons Act 65 of 1988, which protects elderly people buying into villages and is specific about what must be included.

In terms of this legislation, a Section 21 company must run the life rights scheme. This company now falls under new Companies Act and must have a memorandum of incorporation rather than a memorandum of articles.

Constas says that if a developer follows life rights there are a few important prerequisites. First, there must be an endorsement made against the title deeds of the scheme as well as the units to which the Housing Development Schemes for Retired Persons Act applies. It is also compulsory to get an architect’s certificate declaring that the building is fit for its purpose.

She says that because buyers are liable for levies and have to pay for facilities used, the agreement between the developer and the occupant has to specify the estimated levies for two years in advance. It also has to go on record that the prospective occupant knows his rights and is aware of what he could recover if the contract ends.

“If you die or leave, the Section 21 company or trust running the scheme may retain a percentage of the original contribution or the new sale price, whichever is greater,” she says.

“For example, if this takes place within 12 months, the occupant or his estate will get 80 percent of the original payment. After 12 months, he will get 70 percent and, after 24 months, 50 percent. The reasonable cost of fixing up the interior of the unit will also be deducted from the payment to the occupant or his estate.”

Constas emphasises that anyone buying either a sectional title unit or a life right in a retirement village should get advice from an attorney before signing an agreement.

Source: iolproperty.co.za

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The most important of these amendments, says Bauer, relate to:

• Budget preparation:

The amendment of PMR 36 (1) requires the trustees to prepare the levy budget, prior to the financial year end, and to lay this before the members at the AGM.  In the past budgets were usually prepared only a few weeks prior to the AGM (and four months after the financial year end) thereby putting strain on the cash flow of the body corporate.

• Notices for General Meetings:

Another amendment, one which will save time, costs and labour, is a substitution of PMR 39 2 (2) and 54 (1).  This allows for the delivery of documents by facsimile or email, provided that the owner consents in writing to this.  Annual notice and supporting documents for the AGM may now be issued in a digital format, whereas in the past these had to be issued by prepaid post.

• Special levies:

Trustees and members of sectional title bodies corporate should note the deletion of PMR 31 (4), which dealt with the special contributions (special levies) and gave the trustees the power to raise these on their own decision. These clauses have been amended, and now allow the trustees to raise special levies only with owners’ consent.

• Use restriction:

Another more useful change is the amendment of PMR 68 1 (v), which now provides a use restriction. PMR 68 is an addition of section 44 (1) and deals with owners duties and obligations. This change allows owners to use their sections or exclusive use areas only for the purpose as indicated on the sectional plans of the scheme. For example, if a section is zoned as a garage on a sectional plan, it may not be used for anything else, e.g. a workshop or storage area.

• Arbitration:

This amendment to PMR 71 (4) is a minor, but possibly impractical change. This change basically now requires the Chief Registrar of Deeds to appoint an arbitrator in dispute cases instead of the local or provincial Registrar of Deeds who performed this function previously.

• Proxy rule:

A change to PMR 67 now stipulates that any owner of a unit in a scheme may not hold more than two proxies. This, Bauer believes, will lead to many re-adjournments and practical problems in holding general meetings in the future because without proxy holders it may be difficult to attain the required quorum and if trustees cannot reach a quorum within 30 minutes of a scheduled general meeting (as it is most often the case), they will have to re-convene seven days later.

This, says Bauer, will increase costs as managing agents will charge for appearing a second time.  In addition, most proxy forms pass the vote to the chairman if the proxy holder does not attend the meeting – but this is no longer possible.  Second meetings are now likely to be seen far more often.

“We understand the thinking behind the new rule,” he said, “but its application will lead to problems.”

The amendments outlined apply to the standard Prescribed Management Rules only.  The Sectional Titles Schemes Management Bill and Community Schemes Ombud Services are yet to be promulgated.  Bauer says that it is just possible that the new rules may in the end apply only to new sectional title schemes, i.e. those launched after 28^th October.  However, he says, this matter has still to be confirmed one way or the other and he is not yet in a position to comment on it.

Download the Amended Sectional Title Act and Amended Prescribed Management Rules Download the Amended Sectional Title Act and Amended Prescribed Management Rules here

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“Some members of sectional title schemes,” he said, “have legitimate and serious reasons for being unable to pay their levies, but whatever the reasons, the trustees have the fiduciary responsibility to ensure that their body corporate is liquid and remains solvent.  They must, therefore, enforce strict credit controls and treat all non-payers equally.”

“In the long run,” added Bauer, “it is these non-payers who suffer the most because, when put under pressure from the scheme’s lawyers and finally made to pay, they will find themselves (in terms of the Prescribed Management Rules 31 (5)) also having to pay the compound interest on their debt, the legal costs incurred by the trustees and their attorneys, as well as all costs involved in the recovery of their levies and other amounts owed by them.  In addition, they will find themselves with a bad credit record which will be picked up by all future credit providers.”

Any sectional title owner likely to fall behind on his levies, said Bauer, should immediately contact the trustees, or their managing agent, to try and ‘make an arrangement’.  If this is not done and the debts continue to remain unpaid for a significant period, said Bauer, the trustees have no choice but proceed with the collection process.

“The law does provide remedies for body corporate creditors, but these are always time consuming and expensive and need additional funding.”

“All too often,” says Bauer, “trustees have not budgeted for a reserve as well as working capital.  IHFM recommends budgeting for a 10 to 20% addition to the annual levy (depending on the size of the scheme) to ensure that the body corporate remains solvent and has the funds to cover both levy arrears and the legal fees which, although eventually recoverable, do mount up in the interim.

“Trustees have to be strict and deal with debtors in the quickest possible way to ensure that the cash flow of the body corporate is secured.  It has to be made clear that they have a policy of zero tolerance for defaulters.”

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Avoid additional risks

If the flood was serious enough for you to leave your home, be sure you stay safe upon your return. Check for any visible structural damage, such as warping, loosened or cracked foundation elements, cracks, and holes before entering the home and contact your local municipality if you suspect damage to water or electrical lines.

In addition, it’s important to have a working flashlight and turn off all water and electrical sources within the home. Even if the power isn’t operational, it’s a good idea to turn off the mains. That way, if the power is reactivated, you’re not at risk.

Take pictures

Before you remove any water or make any repairs, fully document the damage for your insurer by taking photos or video. Digital versions are best, because they can be stored electronically and easily copied. If you start removing water or making repairs before you photograph the damage, you could potentially decrease the extent of your coverage.

Protect your health

Even if the water in your home is clear, it could be contaminated by sewage or household chemicals. Wear rubber gloves to remove water-damaged possessions and to avoid contaminants. Be sure to throw out any food that may have come into contact with flood waters. Emergency authorities recommend boiling water until authorities declare the water supply is safe.

Call your insurance company

You should notify your insurer soon as possible after the flood, it’s a good idea to keep your insurance company and local agent’s phone number in your always-ready emergency bag.

Since groundwater flood damage typically isn’t covered by conventional homeowners’ insurance policies, you’ll need to work with your insurer to determine the cause of the flood and the extent of your coverage.

Advise your insurance representative of the state of your home and any repairs you intend to do immediately. Be sure to follow the insurance company’s direction about whether or not to wait for an adjuster to inspect the property before making repairs. Document the damage and conversations at every stage of the process.

What can you expect in terms of time to get back to normal? It could be as little as one week if the claim and clean up is minimal to five to six months if you’re working with an insurance adjustor and contractor to complete extensive repairs.

Remove water

Once you get the “OK” from your insurer to remove the water, use a sump pump and a wet vac which is available from most hardware or appliance hiring stores. Water is heavy, so be careful not to injure yourself, especially if you’re carrying buckets of water up and down stairs. Open the doors and windows to allow fresh air to circulate, but be careful not to allow in more water. Your insurer may recommend and cover a flood recovery service to assist with the clean up.

Mitigate mould damage

Mould can develop within 24 to 48 hours of a flood, so remove wet contents, including carpeting and bedding, as soon as possible. If an item has been wet for less than 48 hours, it may be salvageable. However, you’ll need to decide whether it holds enough monetary or sentimental value to try to do so. And notify your insurance company before removing items to ensure that you’re not affecting coverage. Always photograph the flood-soaked items.

Rugs, for example, may be dried and then cleaned professionally. Large pieces of furniture that are saturated will likely be difficult to dry effectively, and should often be discarded.

Mould growth can be controlled on surfaces by cleaning with a non-ammonia detergent or pine oil cleaner and disinfecting with a 10% bleach solution. Always test this solution on a small area of the item or area you’re cleaning to be sure it doesn’t cause staining or fading.

Caution: Never mix ammonia and bleach products, as the resulting fumes can be highly toxic.

Secure the property

As the homeowner, it’s your responsibility to secure the property so that no additional damage occurs. Put boards over broken windows and secure a tarp as protection if the roof has been damaged. Again, take photographs to prove to the insurance company that you have done everything possible to protect your home against further damage.

If the home is habitable, take precautions to keep yourself and your family safe from injury. Use flashlights to move around dark rooms, for example. If the home isn’t habitable, don’t try to stay there. Move to a shelter or alternate location. Consult your insurer to find out what provisions the company will make for temporary housing while your home is being repaired.

Article courtesy of: www.home-dezine.co.za

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